Employers recently caught another break from the NLRB. Last week the Board issued a Memorandum declaring that nine standard employer policies that have in the past been “presumed to be unlawful” will now be presumed lawful. Under the Obama administration, the Board took the position that these nine policies could have an unlawful “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA. Apparently, that position has changed. Continue reading “NLRB Issues a Common Sense Memo”
This week, the National Labor Relations Board issued a significant ruling in the case of Cordúa Restaurants. Specifically, the Board held that:
• The NLRA does not prohibit employers from telling employees that failing or refusing to sign an arbitration agreement will result in their discipline or discharge.
• The NLRA does not prohibit employers from promulgating mandatory arbitration agreements after employees have opted into a collective action under the FLSA or state law.
• The NLRA does prohibit employers from taking adverse action against employees for engaging in concerted activity by filing a class or collective action.
Continue reading “NLRB Rules in Favor of Employment Arbitration”
Yesterday, the DOL issued an opinion letter indicating that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.
The child in question received “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.” Periodically, the parents, school administrators and the child’s speech pathologist, school psychologist, and therapists had IEP meetings to “review the child’s educational and medical needs, well-being, and progress.”
The DOL determined that the employee’s attendance at the IEP meetings constituted “care for a family member … with a serious health condition.” Care for a family member includes both physical and psychological care. As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)
- This is not a radical expansion of the FMLA and in fact, follows a sparse but consistent line of cases and prior opinion letters protecting leave for meetings with caregivers.
- Employers must train their supervisors to spot this type of FMLA leave request. It would be easy for a supervisor to reject this request out of hand.
- Employers should require proper FMLA certification so that they can confirm that the leave is protected.
Executive Summary: In a 3-1 decision, the National Labor Relations Board recently ruled that employers may prohibit nonemployee union representatives from soliciting or promoting union membership within common areas of an employer’s business – such as public restaurants and cafeterias – as long as the employer does so in a non-discriminatory manner. See UPMC Presbyterian Shadyside, et al, Case 06-CA-102465 (June 14, 2019). This decision provides employers with greater control over the use of their facilities. Continue reading “NLRB Gives Employers Greater Control Over Their Public Spaces”
You may recall that San Antonio, Dallas and Austin have enacted ordinances requiring employers to provide employees with paid sick leave. We thought that the Texas legislature was going to enact a law prohibiting such local ordinances. Bad news, the Texas legislative session closed with the Bill still stuck in committee. This means that the paid sick leave ordinances in San Antonio and Dallas are scheduled to take effect on August 1, 2019. Absent a Special Session, there is no other procedural method to revive the Bill, and the Texas Legislature will not have an opportunity to address the sick leave preemption issue until the next session in January 2021.
A court may intervene and enjoin one of more of the ordinances, but it would have to move quickly, with the San Antonio and Dallas ordinances are slated to take effect on August 1, 2019. There is currently an injunction in place preventing the enforcement of the Austin ordinance. The City of Austin has appealed to the Texas Supreme Court, where even if the court decides to review the appeal, a final decision is still months away. Continue reading “Bad News, It Looks Like At Least Two of Texas’ Paid Sick Leave Ordinances Are About to Go Into Effect”
The SSA resumed the practice of issuing Employer Correction Request Notices (AKA “no-match letters”) late last year. These letters notify an employer when the information submitted on an employee’s W-2, such as the SSN, does not match the SSA’s records. Receipt of a no-match letter should trigger an employer to take a number of actions and, just as importantly, to refrain from doing certain things.
I am currently assisting several clients work through the process of dealing with one or more no-match letters. The process is not extremely complicated, but there are several points at which an employer can create liability for themselves. The Department of Justice has provided us with a handy list of Dos and Don’ts to use in this process. Continue reading “What Should You Do If You Receive an SSA “No-Match” Letter”
This past Monday the U.S. Supreme Court held in Fort Bend County v. Davis that the filing of a Charge with the EEOC, or a similar state deferral agency, is not a jurisdictional prescription to the filing of a lawsuit under Title VII.
This does not mean that a plaintiff does not need to file a Charge before filing suit. Rather, it means that if a plaintiff fails to do so, the defendant must object to this failure in a timely manner. In the past, defendants could argue that the failure to file a Charge was a jurisdictional prerequisite to filing suit at any time during the litigation and ask that the Title VII claims be thrown out. Continue reading “Supreme Court Holds EEOC Charge-Filing Requirement is Not Jurisdictional”